Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1647/18 SUIT 110255/88 1
CNR NO.MHCC010053302018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1647 OF 2018
IN
SUIT NO.110255 OF 1988
The Khatau Makanji Spg.& Wvg.Co.Ltd. .. .. Plaintiff
Versus
The Khatau Makanji and Company Pvt.Ltd. ...Defendants
Smt.K.S.Bharucha advocate for Plaintiff.
Shri. Aditya Raut advocate for Defendants.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad hoc Dist.Judge
CR No. : 32
Dated : 4th July 2018
ORDER
1. Plaintiff taken out this notice of motion seeking permission to file
further affidavit of evidence of plaintiff witness No.2 and 3.
2. In the instant matter, as per order dated 24/07/2012 Shri.Anurag
Gokhale appointed as a court commissioner for recording evidence of
the party. The evidence of P.W.1 was completed on 07/02/2015
thereafter, plaintiff filed the affidavit of P.W.2 and P.W.3 before the
court commissioner along with documents but as the documents
annexed with the affidavit of evidence of P.W.2 and 3 were not marked
therefore, plaintiff moved the matter before the court for marking of
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documents. That time it was noticed that certain averments are not
made by the plaintiff therefore, this motion was taken out. Plaintiff
prays that motion be made absolute.
3. Defendant filed the reply. The motion is complete abuse of
process of court and the reliefs sought are untenable in the facts and
circumstances of the case. The motion proceeds on an absolute
misconception of law and is merely a malafide attempt to surpass the
lacuna of the plaintiffs evidence. Plaintiff cannot be permitted to file
the successive affidavits of evidence only with a view to fill up the
lacuna. The plaintiffs not disclosed as to what further evidence is sought
to be introduced and what is stated in the new affidavit of evidence
which are now sought to be brought on record. By way of this motion
plaintiff is attempting to make a malafide attempt to introduce new
evidence having failed to do so earlier. Hence, motion be dismissed with
costs.
4. Heard Ld.advocate Smt.Kashmira Bharucha for plaintiff and
perused rejoinder. Heard learned advocate Shri.Aditya Raut for
Defendants .
5. As per the order of Hon’ble High Court dated 24/07/2012
Shri.Anurag Gokhale was appointed for recording the evidence of
parties. Plaintiff filed the affidavit of P.W.1 Panna Khatau on
16/06/2015 and cross examination was completed on 07/02/2015.
Plaintiff filed the affidavit of P.W.2 Vijaykumar Panigrahi and thereafter
plaintiff placed on record the affidavit of P.W.3 Neesha Sunit Khatau
annexed with the certified copy of extract of the resolution in the
companies board meeting dated 28/04/2015 and P.W.4 Shri.M.P.Antia
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(Chartered Accountant) annexed with the notarized copy of the annual
report from 1987 to 1989.
6. I have perused the affidavit of P.W.3 and P.W.4 with the
documents annexed with their affidavits. The affidavit of evidence in
lieu of examination in chief as is required to be filed in terms of Order
XVIII Rule 4 of C.P.C. and there is nothing in amended C.P.C. which
preclude the court from recording further examination in chief of
plaintiff. In the instant matter, the documents are annexed with the
affidavit of evidence of P.W.3 and 4 but not referred in their affidavit of
evidence. Therefore, unless and until the documents annexed with the
affidavit are referred in the affidavit these documents cannot be
considered for marking of exhibit numbers. Moreover, the document
which plaintiff wants to produce on record are not stranger for the
defendant as the defendant Shri.Amit Khatau who is the director of the
defendant company and affirmed the reply to the notice of motion.
Therefore, in my considered view, if plaintiff is allowed, then defendant
will get the fair opportunity to cross examine the plaintiff witness on
the matters deposed by them in further examination in chief.
7. It may be permissible for the deponent to file a further affidavit,
since Order XVIII Rule 4 does not limit itself to a single affidavit and
there is no impediment to the taking of additional examination in chief
or further or additional affidavit in lieu of examination in chief, this
view was taken by learned Hon’ble single Judge of Bombay High Court
in Rajesh Varma Vs. Aminex Holdings and Investments, a
partnership firm, (2008(3) Mh.L.J.460) is binding on me therefore,
this view taken in the recent order.
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8. The learned advocate Shri.Aditya Raut vehemently argued that by
way of this motion plaintiffs are trying to fill up the lacuna, but as the
matter is for the admission and denial of the documents of P.W.3 and 4
and cross examination by defendant evidence of the parties is yet not
concluded,therefore, there is no question of reopen the evidence or
recall witness for further examination, therefore, in my considered
view, provisions of order XVIII Rule 17 as contended by defendant will
not be applicable.
9. Before parting with order defendant had relied on
1. Vadiraj Naggappa Vernekar(Dead)Through LR.s
Vs. Sharadchandra Prabhakar Gogate 2009(II) OLR(SC) 76.
2. K.K.Velusamy vs. N.Palanisamy 2011(2)KLJ 240(SC)
However, with due regard those are not applicable in the present case
for want of facts.
10. Plaintiff has already placed on record the affidavit of P.W.1 Panna
Khatav and P.W.2 Vijaykumar Panigrahi but plaintiff has wrongly
mentioned again the affidavit of Neesha as a P.W.2 instead of P.W.3
and P.W.3 Shri.M.P.Antia (Chartered Accountant) instead of P.W.4
therefore, plaintiff is required to be make corrections in the number of
plaintiffs witness.
11. Suit is of 1988 it was the specific directions in the matter to
expedite the matter but yet the evidence of the plaintiff is not
completed. Plaintiff has already filed the affidavit of P.W.1 and 2 on
record, their cross examination has been completed and now plaintiff
wants to produce the affidavit of P.W.3 and 4 on record. Considering
this aspect, I am of the view that, cost of Rs.3000/ is required to be
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imposed on the plaintiff and that cost be deposited to the legal aid
account. In view of above discussion, I pass the order.
ORDER
1. Notice of Motion No.1647/2018 is made absolute.
2. Plaintiff is directed to deposit cost of Rs.3000/ in the legal aid
account within 3 days from the date of order.
Date : 04/07/2018 (Pushpa N. Rao)
Ad hoc Dist.Judge
Bombay City Civil Court
Greater Mumbai
Dictation Direct typed on computer: 04/07/2018
Signed by HHJ on : 04/07/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
10/07/2018 at (1.05 p.m.) Mrs. J.V.Pawar
Name of the Judge (With Court room
No.)
HHJ Smt.Pushpa N Rao
C.R.No.32
Date of Pronouncement of
JUDGMENT/ORDER
04/07/2018
JUDGMENT/ORDER signed by
P.O.on
04/07/2018
JUDGMENT/ ORDER uploaded on 10/07/2018
.
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